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Guardianship of V.V.

Supreme Judicial Court of Massachusetts, Essex

February 10, 2015

Guardianship of V.V

Argued January 5, 2015

Petition for appointment of a guardian for a minor filed in the Essex Division of the Probate and Family Court Department on July 17, 2012.

The case was heard by Susan D. Ricci, J., and a motion for relief from judgment was considered by her; a petition for removal of the guardian, filed on May 7, 2013, was heard by Randy J. Kaplan, J.

The Supreme Judicial Court granted an application for direct appellate review.

Glenna Goldis for the mother.

Andrew L. Cohen, Committee for Public Counsel Services, for Committee for Public Counsel Services, amicus curiae, submitted a brief.

Susan R. Elsen, Jamie Ann Sabino, Julie Gallup, Russell Engler, Mary K. Ryan, Shaghayegh Tousi, & Alison Holdway, for Massachusetts Law Reform Institute, Inc., & others, amici curiae, submitted a brief.

Present: Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.

OPINION

[24 N.E.3d 1023] Spina, J.

The mother of the minor child, V.V., appeals from the denial, in the Probate and Family Court, of her motion for relief from judgment pursuant to Mass. R. Civ. P. 60 (b) (4), 365 Mass. 828 (1974). In the motion she alleged that a judgment appointing

Page 591

a permanent guardian for V.V. was void for lack of due process because she was not appointed counsel or afforded alternative procedural safeguards in the guardianship proceeding. We granted her application for direct appellate review. We dismiss the appeal as moot but also hold that a parent of a minor child has a right to counsel where, as here, someone other than the parent seeks to have himself or herself appointed as the child's guardian pursuant to G. L. c. 190B, § 5-206.[1]

Background.

The details of the events leading up to the guardianship decree are set forth in Gianareles v. Zegarowski, 467 Mass. 1012, 5 N.E.3d 1213 (2014). The essential facts are as follows. A judge in the Probate and Family Court appointed the mother's grandmother, and V.V.'s great-grandmother, as V.V.'s permanent guardian in December, 2012. Id. at 1013. The mother was not represented by counsel in the guardianship proceeding. Id. In May, 2013, then represented by counsel, the mother filed her rule 60 (b) (4) motion as well as a petition to remove the great-grandmother as V.V.'s guardian pursuant to G. L. c. 190B, § 5-212 ( a ). Id. The judge denied the rule 60 (b) (4) motion. While the mother's appeal from that denial has been pending, her petition for removal of the guardian proceeded in the regular course. On July 29, 2014, after a trial, a judge (who was not the judge who had appointed the ...


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